Julius Murithi M’Manyara v Republic [2016] KECA 29 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robbery appeal because the conviction challenge was abandoned earlier — you cannot revive abandoned grounds on a second appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court can entertain grounds challenging conviction where the appeal against conviction was abandoned before the High Court and conviction was never determined by that court
- 2.Whether the alleged failure to translate the evidence of PW4 and PW5 into Kimeru violated Article 50(2)(m) of the Constitution and rendered the trial a nullity
Key legal issues
#Whether conviction grounds may be raised on second appeal after the appeal on conviction was abandoned in the High Court
No. The jurisdiction of the Court of Appeal on second appeal extends only to matters determined by the High Court; abandoned conviction grounds cannot be revived before this Court.
The Court found that the appellant, through his advocate, had abandoned the appeal against conviction before the High Court and challenged only sentence. The first appellate court therefore made no determination on conviction. Permitting conviction grounds on second appeal would amount to an impermissible bypass of the High Court, an issue the Court characterised as jurisdictional and incapable of being wished away, and it relied on its earlier decision in Abdalla Ahmed Abdul Rashid v Republic as squarely covering the situation.
Whether the alleged failure to translate PW4 and PW5 evidence into Kimeru violated Article 50(2)(m) and nullified the trial
The issue did not fall for determination, since the appeal against conviction, to which the complaint relates, was incompetent before this Court.
The language complaint went to the validity of the conviction, an aspect abandoned before the High Court. Because the Court is debarred from dealing with any grounds challenging conviction, it held it unnecessary and superfluous to consider whether the appellant understood the language used at trial. The State had argued from the record that the appellant cross-examined PW4 and PW5, but the Court did not reach that question.
Legal principles established
#- On a second appeal, grounds of appeal concerning an issue that was abandoned before the High Court and never determined by it cannot be entertained; doing so would bypass the High Court, which is a jurisdictional bar
- Where a first appeal against conviction is abandoned and only sentence is challenged, the second appeal lies only against sentence; and where sentence for a capital offence is mandatory, section 361(1)(b) of the Criminal Procedure Code debars the Court from hearing an appeal against sentence
- The Court of Appeal will not interfere with concurrent findings of fact by the two courts below unless such findings were based on no evidence, on a misapprehension of the evidence, or on wrong principles
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C. Cr. A. No. 6 of 2013
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Challenge to conviction on the ground of non-translation of PW4 and PW5 evidence (Article 50(2)(m) violation)
The appeal against conviction had been abandoned before the High Court, so this Court is debarred from dealing with conviction grounds on second appeal
Costs
No order as to costs is recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the foregoing reasons, we are satisfied that this appeal is devoid of merit, and we dismiss it.
Entertaining any grounds of appeal on the issue of conviction, after it was abandoned before the High court and with no determination on conviction by the High Court is tantamount to appealing the decision of the subordinate court straight to this Court while bypassing the High Court.
Our law clearly sets out the hierarchy and structure of our court system, and parties are enjoined by law to respect that system. There is no short cut to that. It is actually a jurisdictional issue that cannot be wished away.
The appellant's appeal is therefore incompetent and the same is struck out.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Murithi M’Manyara v Republic [2016] KECA 29 (KLR)", Case Analysis (2016). Criminal Appeal No. 38 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/29/eng@2016-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.